Mashup: A Fair Use Defense – by “Ryan B”

Mashup, a style of music that combines samples from various songs, would appear to many to be the epitome of copyright infringement. In fact, a 2005 court case, Bridgeport v. Dimension, deemed the unauthorized use of even one second of a sample to be copyright infringement. Since mashup blends several samples over the course of any one song, it must certainly be copyright infringement. Right? Not so fast.

Judges do make mistakes, and no court decision is set in stone, so it is worth considering whether a legitimate legal defense could be made on behalf of the mashup artist. In establishing such a hypothetical defense, let’s turn to the fair use doctrine, which permits the unauthorized use of copyrighted materials under certain circumstances.

Fair use is a legal doctrine meant to protect works deemed valuable for society, often shielding works involving first amendment expression, such as parodies. When reviewing a fair use defense, courts consider such things as how “transformative” the work is, the substantiality of the portion used, and the effect on the market for the original work. With this in mind, could a fair use defense be made on behalf of the mashup artist?

I will now show one reason why mashup could be considered fair use. While this particular argument will certainly not apply to all mashup music, I think that it at least demonstrates that Bridgeport’s blanket prohibition of sampling does not leave space for the sort of legitimate behavior that the fair use doctrine was meant to protect.

For this hypothetical fair use defense, let’s delve into the transformative nature of mashup music. To start, mashup artists frequently splice up samples while editing the pitch, tempo, and the mix of the original work. At the end of the day, however, samples are usually meant to be recognizable. As a result, the extent of these edits is typically held within limits.

Nonetheless, mashup can be incredibly transformative for another important reason. By pairing up samples from different songs, mashup can provide an entirely new context for the original works. In this way, mashup artists can provide critical commentary on those works, expressing their own perspectives on the songs being utilized. This can spur valuable conversations that construct new perspectives, a similar process to that triggered by an SNL parody, for example. As a result, mashup can yield the sort of first amendment expression that the fair use doctrine was meant to protect.

To see this argument in action, consider the mashup artist, Milkman’s song “All About It,” which samples the vocal track from Pitbull’s “Go Girl” (listen below; the Pitbull vocal track starts about fifteen seconds in to Milkman’s song). Pitbull originally blended his vocal track with an instrumental that had a dirty feel through its use of a base drum and a repeating flute line. Milkman, however, eliminated this “dirty” sound entirely by pairing up Pitbull’s vocal track with a 90s pop song, Real McCoy’s “Another Night.” The pop context that Milkman provides the Pitbull vocal track reveals how silly Pitbull’s lyrics really are. In this way, Milkman’s sampling of Pitbull’s song acts as a sort of critical commentary on that work, and therefore could be considered worthy of the type of first amendment protection that the fair use doctrine was intended to offer.

Do mashups always provide critical commentary on the samples they use? Probably not. Nonetheless, the Milkman example does seem to show that a mashup could be worthy of fair use protection under certain circumstances. As a result, the Bridgeport decision, which deems all sampling to be copyright infringement regardless of the particular use, seems to be going too far.

5 thoughts on “Mashup: A Fair Use Defense – by “Ryan B””

Thank you for a well written piece. You’ve included arguments I make about transformative use. (I have been Expert Witness in Jib Jab, The Grey Album, Beatallica, the Dixie Chicks’ parody and a lot of others. I was the expert who turned down the original 474 Bridgeport cases-I’ve got lots to say about this stuff!) Judge Higgins’ decision in the original Bridgeport decision in Columbia, TN was so insightful.

The concepts and practices of combining previous and contemporaneously composed music of one or more genres (mashups, for example) are perfectly in keeping with the traditions of every Western musical genre and many non-Western. Copyright law is often at odds with a good musical education – especially with respect to composing and performing. I am one who happily gets into plenty of trouble for pointing this out and advocating for an education with the thinnest of copyright. A knowledge of common law should remain a damn foreign concept for any creator/author. Bolder interpretation of fair use and perhaps a compulsory license for the use of master recordings (one is free to use 10 seconds or 10% – whichever is less – of any master recording that is at least 10 years old, and the new user plays 25% to the SR owner… or insert some other proposal here….) would be very helpful.

I’m curious how the mashup fits into the concept of originality. If it creates a new context for previously existing “original works,” is a mashup itself a wholly original new work (which should as such be subject to standard copyright protection), or is it somehow lesser because it’s an obvious derivative?

But this raises the question – aren’t all works derived from something, or a great number of things? Mashups, parodies, etc. get singled out because the sources drawn upon are so easily identified, but a work that uses a particular painting technique, or linguistic device, or idea in general, while not a “fixed expression” and therefore not copyrightable, may owe just as much to one’s predecessors as the use of something like a song.

The disconnect in current laws leads to a situation where even the most inventive mashups technically constitute infringement, while products that might be incredibly formulaic and “unoriginal” in a less tangible sense still qualify for copyright protection. Of course, with no measurable criteria for originality, it’s much easier to go after identifiably copied data, but this system fails those who draw on previous materials to truly create something new.

I agree with Ryan’s points and with what’s been said above. Mashups have the potential to be very transformative and creative, and being so unique, are more likely to make people interested in the original works than to take away from their sales.

I think a perfect example of this is “Beatallica,” which combines Beatles and Metallica songs, with titles like “Blackened the U.S.S.R,” “…And Justice for All My Loving,” and “The Thing That Should Not Let It Be.” As a fan of both the Beatles and Metallica, I find that Beatallica is bringing a lot of creativity to the table to bring these two unlike bands together and come up with words and music that effectively parodies both bands. And again, since the music is so unique, it would be very difficult to argue that Beatallica is taking away from the sales of the original artists. Therefore, I feel that mashups can indeed be classified as fair use in many cases.

I, too, have a pit-bull who will be the most supporting animal I’ve ever owned. Quickly, a new dog breed will arrive together to the media to blast, as they have completed rotties and dobies in past years. Unfortunate that media sensationalism breeds so much inaccurate details.